WA State Professionals Advocate for H2A and domestic farmworkers, endorse SB 5438

Washington State

Senate Labor & Commerce Committee

February 7, 2019

Public Hearing: SB 5438

 

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Nick Streuli (Employment Security Department)

1:23:15

 

Thank you Madam Chair, Members of the Committee, it’s a pleasure to be with you today.

 

For the record, My name is Nick Streuli, I’m a legislative director with the Employment Security Department. This is one of our agency request bills this year, and of course we’re signed in pro.

 

The administration of the H2A program is shared between ESD the US Department of Labor, the Department of Homeland Security and the State Department. Unlike many of the other guestworker visa programs, the H2A program places a significant workload on the state where those workers are performing work.

 

I want to call out something upfront, we believe the H2A program is important to the agriculture industry in the State of Washington, this bill represents our commitment to that belief and the need for additional resources at the department to fund the work associated with the program to workers and growers as they navigate the program.

 

Over the last several years, this workload has grown exponentially, and we’ve brought this legislation forward for a number of reasons. Use of the H2A program has increased by more than 1,000 per cent since 2009. We project that this year more than 30,000 H2A workers will come to the state of Washington, and we’re currently struggling to administer a number of the federal requirements given the dramatic increases in the use of the program, due to the lack of federal funding.

 

The US Department of Labor provides ESD with an average of $300,000 a year to administer the program which includes a long list of activities costing far more than is allotted. Some of those activities include reviewing and processing H2A applications from growers, so as an example in 2018 we received 260 applications, from 170 growers, and more than 55% of those applications were found to have deficiencies and required intervention by our very limited staff to correct those deficiencies and ultimately process the application.

 

Recruiting domestic farmworkers is another part that we do in agriculture or the H2A program. We seek to find domestic workers to fill those jobs before we certify there is a labor shortage and send that information on to the Department of Labor.

 

We’re required to conduct field checks, and field visits to insure that workers are being treated in compliance with their contracts. For the committee’s information, a field check is a random unannounced audit by ESD to determine and document whether the wages, hours, working conditions and housing conditions are being provided as specified in the contract.

 

We are required to have oversight over the determination and appeal process for discontinuing an agricultural employer’s ability to use the H2A program if they are found out of compliance with federal regulations.

 

We’re required to conduct outreach and education to agricultural employers and farmworkers. And we’re required to investigate complaints associated with the H2A program and refer them to the appropriate enforcement agency. And last, but not least, we’re required to conduct an annual prevailing wage and employment practice survey of both agricultural growers and farmworkers to set prevailing wage rates for various crop varieties and activities. The cost of that survey alone, exceeds the federal appropriation we receive to administer the program.

 

As the staff mentioned, this bill creates a fee structure and we do it in a way that is a transparent and inclusive process to growers and farmworkers to assist the department in setting the fee annually. These fees will be used to supplement the federal revenue ESD receives to administer the program, and the bill prohibits us from bringing in more revenue than is needed to run the program.

 

The advisory committee will include broad representation from business and labor to assist the department looking at new ways to recruit domestic farmworkers to fill these jobs and provide input in the annual fee development process.

 

A couple of other things that I want to call out in anticipation to some of the testimony that you’re going to hear. The federal government does collect a fee from these growers when these growers apply to use the program. However, the US Department of Labor does not increase our appropriation consistent with our use or the state’s use of the program. So for example, we are the third largest user in the nation of the H2A program, and we are 20th in terms of funding that we receive from the Department of Labor to administer the program.

 

We’ve met with the Department of Labor and members of congress to advocate for more equitable funding of the H2A program to no avail. We plan to continue this advocacy at the federal level and have plans to partner with the industry to work towards the federal government meeting its obligation to the states in regard to the H2A program, but given the dramatic rise in the use of the program, we just don’t feel like we can wait for congressional action, and that’s one of the reasons why we brought the bill forward.

 

I mentioned earlier that we’re required to conduct field checks and field visits to make sure of that compliance component. I know one of the things we’ve heard and that we’re really passionate about is making sure that we’re coordinating those field checks and field visits with other departments and agencies that are also doing similar activities on those grower’s properties. The last thing we want is for ESD to show up on Monday, L&I is there on Tuesday, and health is there on Wednesday, we want to try to make sure that those are coordinated, and that’s something that we’ve included language in the bill to make sure that we are coordinating among the agencies so that way that trifecta of Monday, Tuesday, Wednesday doesn’t happen.

1:28:04

 

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Andrea Schmidt (Columbia Legal Services

1:30:53

 

Madam Chair, members of the committee, my name is Andrea Schmidt and I am an attorney at Columbia Legal Services. Columbia Legal Services has litigated a number of cases involving H2A workers employers and we’ve seen up close the ways that the H2A program makes workers uniquely vulnerable to abuse. The reason this program needs proper oversight. The reason for this bill.

 

H2A workers are expressly exempt from the main federal law that protects other farmworkers in this country. Also retaliation against H2A workers who try to demand even basic employment standards is rampant, for two reasons, one because their visa ties them to a single employer and so workers can’t vote with their feet and look for a job on another farm if the conditions are bad, and second, employers have absolute control over which workers get a job offer from foreign recruiter, so workers can be and often are blacklisted from certain farms, from H2A employment altogether for raising concerns about what’s happening in their workplaces.

 

Proper oversight of the H2A employers is critical to stopping abuses. In a case we are litigating now, there have been complaints for at least two years about food and working conditions on the farm. In the summer of 2017, one worker, Honesto Silva Ibarra, died, and another 70 workers were illegally evicted in the span of an hour when they tried to raise questions about working conditions. These workers filed a lawsuit that includes allegations of human trafficking, but that case is now a year old and we’ve seen cases like this go on for years and years. There’s been an enormous personal cost to the workers in the meantime involved, and all of it could have been avoided if ESD had adequate funding for oversight of the program in the first place.

 

To be utterly clear, ESD is not able to do its job on the current funding and farmworkers get hurt as a result of that.

 

This bill is a reasonable and justified request from the agency. We’re now in a place where we’re nearing one-third of the hand harvest farmworkers in Washington, each year being part of a program that puts them in a uniquely vulnerable position. It’s fair to make H2A users, who benefit from having a captive and compliant workforce on their farm, pay the cost of administering the program and we urge support for the bill.

 

Thank you.

1:33:09

 

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Tomás A. Madrigal, Ph.D. (Community to Community Development)

1:44:15

 

Thank you for the opportunity to testify. My name is Tomás Alberto Madrigal. I’m a Food Systems Researcher for Community to Community Development. I am a former child farmworker at Broetje Orchards one of Washington’s largest contiguous apple farms that has not used H-2A labor the 33 years it existed. I am from a family of domestic migrant farmworkers and my paternal grandfather was a bracero during World War II. My specialty is in Mexican labor and industrial agriculture.

 

As I was completing my dissertation, WAFLA changed the face of farm labor in Washington State. In 2016, WAFLA was the employer of record for over 69% of the total 13,689 H-2A visas awarded. WAFLA is responsible for the exponential growth of the H-2A workers that are used in Washington state and also of the [labor contracting] industry and the current saturation of labor contractors that has emerged. An “Office of H-2A compliance and farm labor” has become a necessity in this new and therefore unregulated economy.

 

The original intent of the H-2A visa was to serve as an emergency avenue for growers to access seasonal farm labor in the event of a legitimate farm labor shortage. The H-2A visa was [a legislative compromise with industrial grower lobbies after the original bracero guest worker program was discontinued. The bracero guest worker program was] defeated in December 31, 1964 because farmworker advocates were able to prove to congress that it “(1) depressed the wages of the American Farm Workers, (2) obstructed the formation of farm worker unions, and (3) encouraged American businessmen to lobby for the extension of the bracero program to [other] industr[ies] as well (Craig 1971; Galarza 1964)” (Menchaca 1995).

 

[These three points from 1964 have re-emerged in the United States. (1) WAFLA is currently pursuing litigation meant to legally depress the wages of H-2A farmworkers, this would negatively impact domestic farmworkers who would be displaced by H-2A farmworkers who can work for lower wages because their transportation, housing and meals are covered otherwise, (2) the retaliation, black listing, captivity, and neglect that H-2A farmworkers currently experience is the same activity that obstructed the formation of farm worker unions in 1964, and (3) Scott Dilley, a lobbyist for the Farm Bureau, testified on a Washington House of Representative’s Labor and Workforce Development Committee session that, “It would be nice if we could extend some of those…preferences to other businesses as well.” (Madrigal 2017, 259).]

 

We have seen this happen in Washington State.

 

The passage of these bills would be the least that the state legislature can do to assure that there is at least a floor that capricious entities cannot pass.

 

Thank you.

1:46:28

 

Source: TVW

 

 

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